The Appeal CommissionThe Workers Compensation Act of Manitoba

Analytical Approach

The starting point for the Panel's analysis is the statute.

Section 51(1) of the VBR provides:

Subject to subsection (2), an application for compensation must be made within one year after the date of the event that results in the victim's injury or death, or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.

Section 51(2) provides:

The director may, before or after the expiry of the one year period, extend the time for making an application if he or she considers it appropriate.

In considering the application of the statute to this case, it is significant that the limitation set out in s. 51(1) flows from the date of the actual injury or the date when the victim became aware of or ought to have become aware of the nature and effect of his or her injuries. The statutory trigger point for the limitation is not the date at which the victim became aware of a right to compensation but the date at which the victim became aware of the nature and seriousness of his or her injury.

The legislative intent would appear to be that once the victim becomes aware of the seriousness of the injuries she or he has suffered, then the victim has an obligation to make himself aware of any rights he may have for compensation and to seek to realize those rights within a reasonable period of time.

Section 51(2) provides the director with the authority to extend the time limit for applying but the authority is discretionary in circumstances where the “he or she considers it appropriate”. There is no obligation to extend the time limit for applying in circumstances where the victim knew the extent of his or her injury but simply was not aware of their right to seek redress under the VBR.

Guidance as to when the exercise of that discretion may be appropriate can perhaps be found in other sections of the VBR. For example, s. 50(2) makes provision for a guardian to make an application for a victim under the age of 18 and s. 50(3) makes provision for a substitute decision maker to make an application for a victim who is mentally incompetent.

The VBR recognizes that children or victims who are mentally incompetent may not be in a position to make an application on their own behalf. It is certainly arguable, that it may be appropriate to extend the time limit for filing in circumstances where a guardian or substitute decision maker has failed to meet the time limit because to penalize a child or a mentally incompetent person for the failure of another might appear inappropriate.

While it is not binding, the panel would also note that the program's policy provides for a case by case analysis of whether the application time limit should be included. Factors that may support a decision to approve an extension include circumstances where the applicant was a minor or mentally incompetent or the applicant was medically or psychologically incapable of filing. Again, these are circumstances where the victim was not in a position either to make themselves aware of their right to seek compensation or was not physically or mentally capable of applying.

In summary, the clear legislative intent is that once victims become aware of the nature and extent of their injuries, they have an obligation to inform themselves of their rights and to avail themselves of their rights in a reasonable time period. While extensions may be granted, the decision to do so is discretionary. Factors which might be relevant to a case by case exercise of that discretion include whether it was the victim or someone else who was responsible for the failure to meet the time limit and whether the victim was physically or mentally incapable of applying.

Application to the Facts

In this case, the appellant was 31 years of age. He was not a minor nor is there any suggestion he was mentally incompetent.

He suffered serious wounds on December 14, 2000 for which he was rushed to the hospital and treated. That same day, his assailant was charged with attempted murder. The appellant was visited in the Hospital by the police and was aware at an early date of the seriousness of his injury. His initial application indicates he has not worked since he was attacked.

There is no credible suggestion that the appellant was either physically or mentally incapable of applying for victim's assistance. As the surgeon notes, his postoperative course was uncomplicated.

There was a 20 month delay between the injury and the application for compensation.

In short, the appellant was a mentally competent adult who was fully aware of the seriousness of his injury and of the fact that a criminal offense was alleged to have been committed at an early date. He was physically and mentally capable of applying for victim's compensation.